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Friday, June 26, 2015

SCOTUS Strikes At Prison Industrial Complex Profits

The other SCOTUS decision handed down on Friday, June 26th, is on “three strikes incarceration sentencing minimums” for felons on their third conviction.

The Johnson v. United States case challenged the “residual clause” of the Armed Career Criminal Act, which mandates a 15-year sentence for any federal firearms offender with three prior (residual) convictions for a felony. This was the fifth time since 2007 that the Supreme Court had to issue an opinion on the constitutionality of the residual clause.

This case arises out of the Armed Career Criminal Act, which imposes a mandatory minimum sentence of fifteen years on a federal firearms offender who has three convictions for a felony. In the Johnson case, the government used the “residual clause' to enhance Samuel Johnson’s prison sentence because of a prior conviction of possession of a sawed off shotgun.

The question before the Court was whether possession of a sawed-off shotgun constitutes a felony. Johnson argued that he shouldn’t be subjected to a harsher sentence, because the definition of what was considered “violent” was unconstitutionally vague. SCOTUS agreed with Johnson and issued a 7-1 ruling in his favor.

After initial oral arguments, the Court ordered new briefings and a re-argument of a second question: whether the part of the Act (known as the “residual clause”) which outlines what kinds of crimes should be treated as violent felonies is unconstitutionally vague.

In its 7-1 majority opinion, the Supreme Court holds that imposing an increased sentence under the Armed Career Criminal Act's residual clause is unconstitutionally vague and therefore violates due process. The residual clause is ruled unconstitutional! Conservative Justice Antonin Scalia wrote the majority opinion for the court and ruled that the residual clause of the ACCA is a violation of due process:

“Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise. Each of the uncertainties in the residual clause may be tolerable in isolation, but “their sum makes a task for us which at best could be only guesswork.” United States v. Evans, 333 U. S. 483, 495 (1948). Invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due process.”

In 1984, Congress passed the Armed Career Criminal Act (ACCA), the law required judges to sentence people to 15 years to life if they have three prior convictions for “serious drug offense” or “violent felonies.” However, what exactly qualified as a “violent felony” was frustratingly vague and was used as a sentence enhancer in many non-violent cases. A “residual clause” in the ACCA allowed third time felons to be sent to prison for any crime that “presents a serious potential risk of physical injury to another.”

That potential risk could include drunk driving, fleeing police, failing to report to a parole officer and even attempted burglary. It seemed to be used as a catch-all sentence enhancer for the sole purpose of throwing people in prison for years longer than they deserved to be. This practice has become increasingly more common as more states allow for-profit prisons in their states. The Court's ruling against the residual clause opens the door for thousands of prisoners to have their sentences reduced, releasing them from the private for-profit prison industry's cell blocks, which will cut millions in public tax dollars from flowing to private for-profit prisons.

The lawmakers in many states are contractually required to fill prison cells in private prisons; so it’s not too hard to figure out why the ACCA is such a popular sentence enhancer. Private prisons have sue state governments form contractual non-performance, if their for-profit prison cells aren’t filed to contractually mandated levels — making tax-payers pay up if crime rates and prison incarcerations drop.

Not only could the money spent on mass incarceration — $80 billion in 2010 — pumped up by longer incarceration sentences under the residual clause be put to better use, but the consequences for people who become entangled in the criminal justice system are also lifelong, leading to barriers to employment and housing, among many other things.

People of color are significantly overrepresented in the U.S. prison population, making up more than 60 percent of the people behind bars. Despite being only 13 percent of the overall U.S. population, 40 percent of those who are incarcerated are black. Latinos represent 16 percent of the overall population but 19 percent of those who are incarcerated.

People of color are more likely to become entangled in the criminal justice system. Among black males born in 2001, one in three will go to prison at some point during their lifetimes; one in six Latino males will have the same fate. By contrast, only 1 out of every 17 white males is expected to go to prison. A similar pattern exists among women: 1 in 111 white women, 1 in 18 black women, and 1 in 45 Latina women will go to prison at some point. Furthermore, African Americans are 2.5 times more likely to be arrested than whites.

The so-called War on Drugs has disproportionately affected people of color. Despite using and selling drugs at rates similar to those of their white counterparts, African Americans and Latinos comprise two-thirds of those in state prisons for drug offenses and 72 percent of those sentenced for federal drug trafficking offenses, which generally carry extreme mandatory minimum sentences. These trends have been intensified by further extending incarceration sentencing times under the “residual clause” three-strike mandate.

According to Unlocking America, if African American and Hispanics were incarcerated at the same rates as white Americans, today's prison and jail populations would decline by approximately 50%. If current trends continue, one in three black males born today can expect to spend time in prison during his lifetime.

Today, the US has 5% of the World population and has 25% of world prisoners. Combining the number of people in prison and jail with those under parole or probation supervision, 1 in ever y 31 adults, or 3.2 percent of the population is under some form of correctional control.

The Johnson v. United States ruling means Congress will have to clarify the law and you can bet that private prison lobbyists are about to throw even more money at lawmakers, but hopefully the ruling signals the beginning of the end for mass incarceration in our nation.

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